It is always difficult when a family member loses the capacity to manage their own affairs and it can be even worse where it happens suddenly as the result of an injury. Our key partner, Ashtons Legal, explains how the Court of Protection works
When you might need the Court of Protection
Sadly there are times in people’s lives when they no longer have the mental capacity to deal with their own affairs and require the support of others to act on their behalf. This may be due to age related illness or an accident.
In cases where the loss of capacity is due to an injury there is likely to be a compensation claim being made and with all the aspects of support that may well be needed, the management of someone’s finances can become overwhelming. Family members want to dedicate their time to being with the injured person, supporting them and spending quality time with them, rather than having to deal with financial and administrative issues.
Everyone’s individual and personal circumstances are different as are their needs and family background. It is important that they have in place the appropriate levels of support to help themselves and their family.
The role of a Deputy
If someone lacks mental capacity to manage their own financial affairs then the appropriate route is to seek the appointment of a Deputy under the Court of Protection to help them. A Deputy can also be appointed separately to manage a person’s welfare, if they do not have the capacity to manage this themselves, but this is less common.
The Court of Protection is based in London, and makes decisions on financial or welfare matters for people who can’t make decisions at the time they need to be made. Most cases are heard by district judges and a senior judge but can sometimes be heard by High Court judges. In cases where there is a compensation claim, the Deputy is usually a professional who works alongside the injured person and their family, together with other professionals, to put in place the best possible support network for them. There can be many aspects to the work of a Deputy:
- Making applications to the Court of Protection
- Tax returns
- Payroll and employment of care teams
- Setting of budgets with clients, family and other professionals and monitoring these
- Arranging investment of a damages award through a specialist independent financial adviser
- Payment of day to day bills
- Preparation of annual accounts and reports
- Liaising with Case Managers and other professionals in respect of care teams, therapists and other needs
- Purchase of new properties
- Working with architects and others in getting properties adapted to meet a person’s needs
- Consideration of statutory funding availability
- Dealing with benefits applications
- Ensuring availability of funds to meet a person’s day to day needs.Even when a Professional Deputy is appointed, they have to involve the injured person and their family fully in any decisions that are made. This is a requirement of the Mental Capacity Act 2005 which is the legislation covering the role of a Deputy.
One of the key issues for any client and their family is that they are able to trust and develop a close working relationship with whoever is acting as their Deputy. This list gives an idea of what may be involved but is not exhaustive and the work can involve many different areas of a person’s life. In cases where there is a damages award being claimed it is usually possible to claim the additional costs of a Professional Deputy being appointed and the ongoing management of the person’s affairs.